White men can't judge - commissioner

2013-04-07 20:17

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Johannesburg - A commissioner of the Judicial Service Commission (JSC) will ­on Monday advise his employer to "come clean" and tell white male candidates that they needn't ­bother applying to become judges.

And, in what may be seen as a startling indictment of the JSC, it has also been warned to guard "most strenuously" against the "pursuit of a covert political ­agenda under the guise of an ­alleged constitutional imperative [of transformation]".

These statements are contained in a discussion document that commissioner Izak Smuts is due to present at a closed meeting of the commission on Monday, ahead of a week of interviews in Cape Town.

In the document, which City Press has seen, Smuts says: "One way or the other, the JSC must deal with the uncomfortable perception that the graffiti on its wall reads 'white men can't judge'."

He argues that "the JSC ought to have an honest debate about its ­approach to the appointment of white male candidates.

"If the majority view is that... white male candidates are only to be considered for appointment in exceptional circumstances, the JSC should, at the very least, come clean and say so, so that white male candidates are not put through the charade of an interview before ­being rejected."

Smuts, a practising advocate and senior counsel, is something of a crusader in the legal profession. He recently quit his position as deputy chair of the General Council of the Bar over the ­council’s position on the legal practice bill.

His comments come against the backdrop of increasing criticism and questions around the JSC’s ­appointment of candidates.

In April 2011, the JSC decided to leave open two spots on the Western Cape High Court's Bench, despite the fact that there were four white senior counsel available.

The Supreme Court of Appeal (SCA) would eventually declare this decision irrational.

In the case, the JSC argued it could not be expected to give ­reasons for non-appointment of candidates because its members voted by secret ballot.

But the SCA ruling went against this view.

Startlingly, the JSC then elected not to change its voting procedures, causing some in legal circles to question how a body could give reasons for a decision taken by a secret ballot.

When lawyer Jeremy Gauntlett applied for a position on the Western Cape High Court Bench in the October round of interviews last year, the JSC faced court action because he had not been appointed.

When compelled to give reasons, the JSC said it did not believe Gauntlett, one of the most highly regarded advocates in the country, had the necessary judicial temperament.

He was again passed over.

Newly retired Constitutional Court Justice Zak Yacoob also ­recently criticised the JSC when he said he “doubted” the Constitution ever envisioned a process where JSC members would vote by closed ballot.

He argued that a comprehensive set of guidelines should be put in place.

In his discussion paper, Smuts also raises the spectre of a "covert political agenda" by the JSC.

In April last year, Advocate Wim Trengove told the Mail&Guardian there was an impression “the political component of the ANC (on the JSC) wields far greater influence than in the first five years”.

Smuts will tomorrow tell the JSC the word ‘transformation’ appears in no statutory provision relating to the JSC, including the ­Constitution.

The Constitution only provides for the “need for the judiciary to ­reflect broadly the racial and gender composition of South Africa”, Smuts argues in his submission.

Focus on women

Gender transformation will be at the top of the agenda for the Judicial Service Commission (JSC) when it meets this week to fill 11 vacancies in the country’s superior courts.

Gender transformation of the judiciary in South Africa has not only ground to a halt, it is actually going backwards.

According to government statistics, it appears the JSC has kept the pedal down on racial transformation, but has sidelined gender transformation.

In March 2011, the number of African judges (98) for the first time surpassed that of white judges (90). In fact, the number of white judges has shrunk by 30% when compared with 2005.

In that year, 30% of judges were women, which this year dropped to just 28%.

In this round of interviews, 14 of the 23 potential candidates are women.

Read more on:    jsc  |  izak smuts  |  judiciary

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